Environmental Law Commons^™

Amici Curiae Brief Of The International Municipal Lawyers Association And Legal Scholars In Support Of Defendants-Appellees In Portland Pipe Line Corporation, Et Al. V. City Of South Portland, Et Al., Sarah J. Fox, Sara C. Bronin, Nestor M. Davidson, Keith H. Hirokawa, Ashira Pelman Ostrow, Dave Owen, Laurie Reynolds, Jonathan D. Rosenbloom, Sarah Schindler

Sturm College of Law: Faculty Scholarship

This brief to the Maine Supreme Judicial Court was filed in support of the City of South Portland by the Amici Curiae, including the International Municipal Lawyers Association and legal scholars, to provide the Court with a background on the role of local governments in land use planning, and to explain why the City of South Portland’s Clear Skies Ordinance falls easily within the City’s authority and was not preempted by state legislation.

After studying the potential for bulk loading of crude oil within its boundaries, the City of South Portland concluded that the infrastructure requirements and environmental impacts of …

Building A National Ocean Policy Confronts Deconstruction Of The Administrative State, Brion Blackwelder

Faculty Scholarship

No abstract provided.

Greenwashing No More: The Case For Stronger Regulation Of Environmental Marketing, Robin M. Rotman, Chloe J. Gossett, Hope D. Goldman

Faculty Publications

Fraudulent and deceptive environmental claims in marketing (sometimes called “greenwashing”) are a persistent problem in the United States, despite nearly thirty years of efforts by the Federal Trade Commission (FTC) to prevent it. This Essay focuses on a recent trend in greenwashing - fraudulent “organic” claims for nonagricultural products, such as home goods and personal care products. We offer three recommendations. First, we suggest ways that the FTC can strengthen its oversight of “organic” claims for nonagricultural products and improve coordination with the USDA. Second, we argue for inclusion of guidelines for “organic” claims in the next revision of the …

Incorporating Free, Prior And Informed Consent (Fpic) Into Investment Approval Processes, Kelly Dudine, Sam Szoke-Burke

Columbia Center on Sustainable Investment Staff Publications

Investment approval processes are the gateway through which governments set the agenda for their country’s investment environment. Yet too often these processes fail to incorporate meaningful requirements regarding participation in decision-making by Indigenous and other affected communities, increasing the risk of under-performing and conflict-ridden investments.

Enabling meaningful participation by rights holders and obtaining and maintaining their Free, Prior and Informed Consent (FPIC) throughout different investment approval processes can help governments to fulfill their legal obligations, mitigate financial and political risk, and, ultimately, attract more sustainable land-based investments.

Featuring concrete guidance and drawing on case studies from Kenya, Liberia, Mexico, Peru, …

Don’T Throw Caution To The Wind: In The Green Energy Transition, Not All Critical Minerals Will Be Goldmines, Perrine Toledano, Martin Dietrich Brauch, Solina Kennedy, Howard Mann

Columbia Center on Sustainable Investment Staff Publications

The green energy transition will be exceedingly mineral intensive. Manufacturing solar panels, wind turbine and batteries to power cleaner energies is set to significantly increase the demand for co-called “critical” minerals. Such a forecast prompts high expectations in mineral-rich countries and suggests promising opportunities for developing countries.

However, the projects to increase the primary extraction of critical minerals rest on bullish forecasts and uncertain terrain due to a number of factors explored in the paper that threaten to leave these investments obsolete and economically stranded.

Governments, international actors, and mining advocates seeking to optimize the value of green energy mineral …

Modern Provisions In Investment Treaties, Jesse Coleman

Columbia Center on Sustainable Investment Staff Publications

Governments are pursuing substantive and procedural reform of the international investment regime in recognition that there are fundamental, systemic, and interrelated concerns about current approaches to investment governance, and that current approaches have failed to meet their purported objectives.

A vast majority of the 1,023 publicly-known treaty-based claims have been brought under “old-generation” treaties. In 2018, for example, 60% of such claims were brought under treaties originally concluded in the 1990s or earlier, and all but one was filed under a pre-2011 treaty. These old-generation treaties include vague and far-reaching obligations for states, generally do not include any reference to …

Submission To Bonsucro Re Production Standard V5 (2019-21), Nami Patel, Sam Szoke-Burke

Columbia Center on Sustainable Investment Staff Publications

In July 2020, CCSI made a formal submission to Bonsucro, an international multi-stakeholder initiative and certification scheme concerned with promoting sustainable sugar cane production. The submission formed part of consultations for Bonsucro’s draft Production Standard version 5. CCSI’s submission focused on challenges associated with implementing, and auditing for compliance with, three aspects of Bonsucro’s draft standard, namely:

• Obtaining the free, prior and informed consent (FPIC) of Indigenous and traditional communities when establishing or expanding sugar production operations
• Implementing transparent and participatory processes to assess, monitor, and evaluate the environmental and social impacts of new and existing projects; and
• Establishing accessible …

Disclosing The Danger: State Attorney Ethics Rules Meet Climate Change, Victor B. Flatt

Utah Law Review

This Article suggests a novel concept in climate change law and attorney ethics law by proposing that many states’ attorney ethics laws could be interpreted to require, or at least permit, attorneys to disclose client activity relating to greenhouse gas emissions. Every state has some form of ABA Model Rule 1.6(b), either requiring or allowing attorneys to disclose client activities that result in death or substantial bodily harm. This Article asserts that precedent surrounding this disclosure rule indicates that the rule could be applicable to harms caused by greenhouse gas emissions. Attorney disclosures, in turn, could impact a wide swath …

Restoring The Public Interest In Western Water Law, Mark Squillace

Utah Law Review

American Western states and virtually every country and state with positive water resources law are in perfect agreement about the wisdom of treating their water resources as public property. Not surprisingly, this has led most Western states to articulate a goal of managing these resources in the public interest. But the meaning of the term “public interest,” especially in the context of water resources management, is far from clear. This Article strives to bring clarity to that issue. It begins by exploring three theoretical approaches that might be used for defining the public interest in water resources law before urging …

Indigenous Rights And Climate Change: The Influence Of Climate Change On The Quantification Of Reserved Instream Water Rights For American Indian Tribes, Dylan R. Hedden-Nicely, Lucius K. Caldwell

Utah Law Review

The people indigenous to the Western portion of the lands now referred to as North America have relied on aquatic species for physical, cultural, and spiritual sustenance for millenia. Such indigenous peoples, referred to in the American legal system as Indian tribes, are entitled to water rights for fish habitat pursuant to the Winters Doctrine, which holds that the federal government impliedly reserved water rights for tribes when reservations were created. Recently, the methodology for quantifying these rights has been the Instream Flow Incremental Methodology (IFIM) and/or one of its major components, the Physical Habitat Simulation Model (PHABSIM). These models …

The Incidental Environmental Agency, Tara K. Righetti

Utah Law Review

State oil and gas conservation agencies are the gatekeepers to oil and gas development: as the agencies charged with granting drilling permits, they decide if, when, where, and how oil and gas will be developed. As such, oil and gas conservation agencies sit on the front lines in the emerging, and increasingly irresolvable, struggle between fossil energy development and the environment. Current oil and gas conservation regulation is designed to promote development, maximize recovery of the resource, and protect the individual property rights of mineral owners. However, advocacy by environmental constituencies, including surface owners and local governments, has challenged the …

Up In The Air: A Fifty-State Survey Of Atmospheric Trust Litigation Brought By Our Children’S Trust, Anna Christiansen

Utah Law Review

Frustrated by government inaction in response to the threats posed by anthropogenic climate change, the advocacy organization Our Children’s Trust (OCT) is pursuing legal reform in every state in the United States. These efforts include petitioning state environmental agencies for rulemaking and filing lawsuits against those agencies and the states. The legal claims have generally been rooted in the public trust doctrine. This Note surveys OCT’s efforts and the evolution of the organization’s legal strategy, as OCT has recently based its lawsuits on violations of substantive due process, and in some cases, violations of the states’ own environmental laws. This …

The Green New Deal And Green Transitions, Nicholas Bryner

All Scholarship

In February 2019, Representative Ocasio-Cortez and Senator Markey introduced a "Green New Deal" Resolution in Congress, calling for a tenyear mobilization toward action on climate change, socioeconomic inequality, and other issues. A Green New Deal--evoking the language of FDR-erapolicy--envisions a transition to a green economy that is integrated with concern for the social and economic welfare of those who are most harmed by environmental degradation and those who are most likely to be displaced by the reinvention ofU.S. infrastructure and energy systems. This Article addresses the need for engaging with regulatory transition theory in order to assess the legal, policy …

Assessing The Performance Of Voluntary Environmental Programs, Luis Inaraja Vera

Utah Law Review

In recent years, government agencies have increasingly relied on voluntary programs to achieve a variety of goals, from improving worker safety to creating healthier living conditions in urban areas. This type of government initiative is based on a bargain between the agency and private citizens: the government provides certain incentives—economic or otherwise—and private actors voluntarily adopt behaviors that benefit the public. One example is cleaning up a contaminated site and building an affordable housing project.

While agencies have made substantial progress since the creation of the first voluntary programs, much work remains. To move forward in this area, and especially …

The New Revolving Door, Michael P. Vandenbergh, J. M. Gilligan, Haley Feuerman

Vanderbilt Law School Faculty Publications

This Article demonstrates that a new revolving door is emerging between environmental-advocacy groups and the private sector. Since the birth of the modern regulatory state, scholars have raised concerns that the revolving door between corporations and government agencies could induce government officials to pursue corporate interests rather than the public interest. The legal and political-science literatures have identified several benefits that may arise from the revolving door, but the thrust of the scholarship to date has emphasized the potential harms. Using several data sources, we demonstrate that as the private sector has begun to play an increasing role in environmental …

Session 6: Innovating The Built Environment Post-Covid-19, Marc Palatucci, Richard Lyall, Timothy Harris, Steven Bender, Peter Smirniotopoulos, Ryan Mathesin

SITIE Symposiums

ABSTRACT: Innovating the Built Environment for a Post-COVID-19 World

It would seem an act of academic malpractice to teach a course titled Innovating the Built Environment: How the Law Responds to Disruptive Change, and host an all-day symposium as an integral part of that course, and not endeavor to address the most-disruptive thing to happen to the built environment in more than 100 years: The coronavirus pandemic. This "disruption" to real estate is the proverbial elephant in the room. Hopefully, it will maintain a minimum six-foot distance from others as we address how it impacts the four Special Topics …

Session 5: Real Estate Tokenization, Joseph Vincent, Steven Bender, Peter Smirniotopoulos

SITIE Symposiums

ABSTRACT: Is “tokenization” the next great leap forward needed to make homeownership more appealing to Millennials and Gen Z’s?

If single-family homeownership and time-sharing had a love child, what would it look like? Is it possible to adapt successful models for office sharing to homeownership so renters who lament not owning an appreciating asset could have a stake in “something” while not being tied down to one specific residential structure or a single geographic location, to make homeownership more attractive to younger generations? And, if so, does blockchain technology hold the key (pun intended) to fractional ownerships in real …

Session 4: Atlanta Beltline, Art Lansing, Rob Turner, Jim Langford, Kristen Lohse, Claire Martini

SITIE Symposiums

ABSTRACT: What Would it Take to Connect All of Greater Seattle’s Neighborhoods with Walking and Biking Trails?

Major U.S. cities have endeavored, independently of each other, over the past several decades to create greenway systems connecting residents and visitors with neighborhoods and attractions, increasing opportunities for walking and biking and reducing their reliance on vehicular traffic. Atlanta’s BeltLine--a twenty-two-mile loop of historic railroad right-of-ways encircling the city’s downtown and midtown areas, seeks to reinvent the city if transformed into a green corridor—is perhaps one of the best examples of how a Seattle Greenway might be accomplished (although Atlanta’s concerted …

Session 3: Virtual Luncheon Session, Student Submissions

SITIE Symposiums

A Working Lunch brainstorming discussion, moderated by Professor Smirniotopoulos, to discuss “What Comes Next?” in the context of Innovating the Built Environment: How the Law Responds to Disruptive Change.

Registered students in Prof. Smirniotopoulos’s Innovating the Built Environment course will take one-to-two minutes each to present their initial project ideas for their Final Projects in the course, as well as outlining and moderating a discussion of the Challenges and Opportunities presented by their ideas. Symposium participants are encouraged to set up lunch in front of their computers and participate actively in discussing each student’s project idea, providing relevant …

Session 2: Wework, Ryan Mathisen, Peter Smirniotopoulos, Paul Swegle

SITIE Symposiums

ABSTRACT: When Worlds Collide: How an 86-Year Old Federal Law (The Securities Act of 1933) Exposed the Flaws in WeWork’s “Innovative Business Model.”

Co-working pioneer WeWork, a wholly owned subsidiary of The We Company, grew meteorically through an extremely aggressive building and master-lease acquisition strategy over the past several years. Substantial, early stage funding from SoftBank, a Japan-based high-tech venture capital investment bank, reinforced WeWork’s unicorn status. But was WeWork’s business model truly unique, bringing with it the promise of a very profitable real estate operating company in the future? Or was it the company’s early stage, venture …